Court File and Parties

Court File No.: CV-17-584207 Date: 2018-09-11 Superior Court of Justice - Ontario

Between:

Kristian Rolf Langenfeld, Applicant

• and -

Toronto Police Services Board and Toronto Police Chief Mark Saunders, Respondent

Before: Copeland J.

Heard: September 11, 2018

Counsel: Self-Represented, Applicant Mr. Fred Fisher and Ms. Lauren Elliott, for the Respondent, Toronto Police Services Board Ms. Marianne Wright and Ms. Sie-Wing Khow, for the Respondent, Chief of Police, Mark Saunders

Costs Endorsement

[1] On June 18, 2018, I delivered Reasons granting Mr. Langenfeld’s constitutional application in relation to the Chief of Police. No relief was granted against the Toronto Police Services Board (the “TPSB”). I subsequently received written submissions in relation to costs. This endorsement is my ruling with respect to costs.

[2] Mr. Langenfeld seeks costs against both the TPSB, and the Chief of Police. He seeks costs in the amount of $31,142.02, which is composed of $30,350.00 in “fees” and $792.02 in disbursements (including taxes). I will outline in relation to each respondent the specific arguments of the parties in relation to costs, but I note that a significant issue is the fact that Mr. Langenfeld represented himself in the application. As such, I must consider the jurisprudence in relation to the court’s discretion to award costs (in particular something akin to fees) to a self-represented litigant.

[3] For the sake of clarity, it is my understanding based on reviewing Mr. Langenfeld’s bill of costs, that he is seeking the fees portion of his costs on the basis that he spent 607 hours preparing for and arguing the application (broken down in some detail in the bill of costs). His bill of costs uses the rate of $50 per hour for partial indemnity costs, and $75 per hour for substantial indemnity. I understand him to be seeking the partial indemnity rate, as the $30,350.00 he seeks in fees works out to $50 an hour.

The Toronto Police Services Board

[4] I will deal first with Mr. Langenfeld’s request for costs against the TPSB. I will not address the issues regarding self-represented litigants here, because I find that no costs award should be made against the TPSB for other reasons.

[5] Mr. Langenfeld argues that the jurisdictional argument raised by the TPSB was raised unnecessarily, because, he argues, he clarified his position by email with the TPSB in advance of the hearing. He further argues that responding to the TPSB’s jurisdictional argument required him to expend additional time in preparation.

[6] The TPSB argues that no costs should be awarded against it because it limited its response to a jurisdictional issue, and worked to narrow the issues before the court. In the alternative, the TPSB makes submissions in relation to the limits on awarding costs to self-represented litigants.

[7] Two factors lead me to conclude that I should make no order as to costs in relation to the TPSB. The first is that the primary relief Mr. Langenfeld was seeking related only to the Chief of Police. The second is that the TPSB responded to the application in a very limited scope, addressing only the jurisdictional issue, and did so essentially in the role of an officer of the court.

[8] Regarding the first factor, as I explained in my Reasons of June 18, 2018, the primary relief sought by Mr. Langenfeld was against the Chief of Police and not against the TPSB (Reasons of June 18, 2018 at paragraphs 32-42). Indeed, I found that the only relief Mr. Langenfeld sought against the TPSB was premature and speculative (Reasons of June 18, 2018 at paragraphs 36-42). Nor did I order any remedy as against the TPSB (Reasons of June 18, 2018 at paragraph 158).

[9] Given that the application, and the relief sought were primarily directed against the Chief of Police, and that no order was made against the TPSB, in my view it would not be fair or proportionate to make an award of costs against the TPSB.

[10] This conclusion is supported by the second factor that leads me to make no costs order against the TPSB, the nature of the TPSB’s response to the application. As outlined in my Reasons of June 18, 2018, the TPSB filed written argument and made oral submissions only on the issue of jurisdiction as between a single judge of the Superior Court, and the Divisional Court. The TPSB made no submissions on the merits of Mr. Langenfeld’s application (Reasons of June 18, 2018, at paragraphs 32-43, 92-94). The TPSB’s submissions on the jurisdictional issue were helpful to the court, and in my view were made from the perspective of counsel assisting as an officer of the court (Reasons of June 18, 2018 at paragraphs 33-34). I reject Mr. Langenfeld’s argument that the jurisdictional issues raised by the TPSB were unnecessarily raised.

[11] For these reasons, I find that the limited and focused nature of the TPSB response to the application also supports making no costs award against the TPSB.

[12] Given these reasons, I do not address the TPSB’s submission in relation to costs awards involving self-represented litigants; although I deal with that legal issue below in relation to the Chief of Police.

The Chief of Police

[13] Mr. Langenfeld argues that he should be awarded costs because he was successful in the litigation. He argues that the conduct of the litigation by the Chief of Police increased costs (including, he argues, late filing of materials, and the filing of very voluminous materials by the Chief of Police). He argues that the court may award him costs as a self-represented litigant based on the Court of Appeal decision in Fong v. Chan. I will address in more detail below the factual basis asserted by Mr. Langenfeld for the amount of fees he seeks.

[14] The Chief of Police argues that the security searches instituted at police headquarters were instituted for safety reasons, and that he “made an operational decision in good faith for the protection and safety of all those who attend and work at TPS headquarters.” He argues that this rational for his actions justifies making no order as to costs. The Chief of Police argues that although the court has a discretion to award costs to self-represented litigant pursuant to Fong v. Chan, Mr. Langenfeld has not provided any evidence that he had to forgo any remunerative activity because of the litigation. The Chief of Police further argues that the costs sought by Mr. Langenfeld are excessive, and insufficiently documented.

[15] Pursuant to the Courts of Justice Act, s. 131 (1), the court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out a non-exhaustive list of factors to be considered by the court when determining the issue of costs. These factors include: the principle of indemnity and the results obtained; the reasonable expectations of the paying party; the amount claimed in the proceeding and proportionality; the complexity of the proceeding; the importance of the issues; the experience of the lawyer for the party entitled to costs; any offers to settle; and, the conduct of a party that tended to lengthen the duration of the proceeding.

[16] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. I have considered these factors, as well as the principle of proportionality (R. 1.01(1.1)), keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[17] In Fong v. Chan, the Ontario Court of Appeal held that fees akin to counsel fees may be awarded to self-represented litigants, because the policy reasons for which costs are awarded are forwarded by allowing the awarding of costs to self-represented litigants (paragraphs 20-25). A self-represented litigant does not have an automatic right to recover costs, and costs to a self-represented litigant remain in the discretion of the trial judge (paragraph 25).

[18] Further, self-represented litigants are not entitled to costs on the same basis as litigants who retain counsel. In particular, a self-represented litigant is not entitled to recover costs for loss of time that any litigant would have suffered as a result of involvement in litigation (for example, attendance at court, or at discoveries or cross-examinations as a witness) (Fong at paragraph 26).

[19] The Court of Appeal in Fong v. Chan stated the following two-part test for when costs (apart from disbursements) may be awarded to a self-represented litigant:

“Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.” (Paragraph 26)

[20] The Court of Appeal added that self-represented litigants should only receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case, and should not routinely be awarded a per diem fee for attendances in court, since many litigants would attend the court hearing even if represented by counsel.

[21] Fong v. Chan was considered by the Divisional Court in Mustang Investments v. Ironside, 2010 ONSC 3444 (Div. Ct.). The Divisional Court holding stresses the importance of the second branch of the analysis in Fong v. Chan, that there must be proof of opportunity cost by the self-represented litigant in preparing the litigation. In other words, standing alone, the fact that a self-represented litigant did work in preparing the litigation that would otherwise have been done by a lawyer, does not entitle a litigant to an award of costs.

[22] Counsel for the Chief of Police argues that Mr. Langenfeld has not shown that he gave up remunerative employment to prepare the litigation.

[23] I note that counsel for the Chief of Police appears to read Fong v. Chan and Mustang Investments as requiring evidence by way of affidavit to make the showing of remunerative employment being foregone. I disagree with this reading of the cases. Both cases are concerned that there be a showing of remuneration foregone; however, given the relatively informal nature of costs submissions, I do not agree that this requires affidavit evidence. Indeed, it would be contrary to the goals of efficiency and proportionality to require affidavit evidence on this aspect of costs submissions (see rule 57.01(7)).

[24] Thus, I proceed to consider the submissions Mr. Langenfeld made in his written cost submission in relation to remuneration foregone.

[25] Based on Mr. Langenfeld’s costs submission, I am unable to find that he has incurred opportunity costs and foregone remuneration to prepare the litigation. He currently works part-time as a school bus driver. He began this employment in the fall of 2017. He asserts that he did not take on full-time work during this period because he did not have time since he was preparing this application. However, there is another portion of his submission that appears to contradict this assertion. He outlines his past work history in accounting-related work. He asserts that he made a quality of life decision to pursue lower paying employment, rather than continue in the high-stress work of financial consulting.

[26] Thus, while Mr. Langenfeld asserts that he could not take on full-time work because of the demands of preparing the application, he also asserts that he stopped full-time work in the financial industry prior to the time this application was proceeding, because he made a quality of life decision to pursue lower paying employment.

[27] Based on these submissions, and the fact that he was working part-time at the time he prepared the application, I am unable to find that Mr. Langenfeld has foregone remunerative activity to prepare the application. I will not make an award of costs with respect to the fees portion of the costs sought by Mr. Langenfeld.

[28] The costs submission of the Chief of Police does not expressly address the issue of disbursements; however, I proceed on the basis that the Chief of Police’s submission that costs should not be ordered because he “made an operational decision in good faith for the protection and safety of all those who attend and work at TPS headquarters” extends to disbursements (paragraph 3 of costs submission).

[29] With respect, I disagree with this submission by the Chief of Police. Mr. Langenfeld brought the application in the public interest to advance his constitutional rights and those of others wishing to attend TPSB meetings. He was successful in the application as against the Chief of Police. As such, the indemnity principle supports that he should be awarded the disbursements portion of his costs. Mr. Langenfeld’s disbursements as detailed in his costs outline are reasonable. Thus, I order the Chief of Police to pay Mr. Langenfeld’s disbursements in the amount of $792.02.

Conclusion

[30] I make no order as to costs against the TPSB.

[31] The Chief of Police shall pay Mr. Langenfeld’s disbursements in the amount of $792.02 (including HST).

Justice J. Copeland Released: September 11, 2018